By Shawn Tafreshi
District Attorney’s Office
As a law student or new lawyer, it’s perfectly normal to be uncertain about your area of specialization. “Do I like criminal, civil, family, immigration, human rights, or some other area of the law? Do I want to do trials or transactional law?” It’s perfectly common to ask yourself these questions.
Law school courses offer only a limited glimpse into different legal specialties. The real learning happens when you, whether as a law student or a young lawyer, either obtain an internship or begin to work in a setting where the practice of law is observed first-hand.
A majority of jury trials involve criminal law. As a result, those who want to experience jury trial work would be wise to seek an internship with a governmental office specializing in criminal law. In San Diego, the Office of the Public Defender and Federal Defenders are your best criminal defense options.
If you want to learn about prosecuting cases, there are internships available through the San Diego County District Attorney, the City Attorney, and the U.S. Attorney. These offices are filled with talented trial lawyers who will supervise you. Working with supervisors still requires that you know and understand the application of important ethical rules.
Criminal Defense
Imagine your first day as an intern at an office representing indigent clients. You are assigned a supervisor who wants to immerse you immediately in the world of criminal defense.
Your supervisor invites you to join her as she meets with her client who is charged with a murder that occurred outside a downtown bar. During introductions, your supervisor tells the client, “this law student is an intern working on our legal team to do research for your defense, so please speak freely.”
During the interview, you are fascinated as the client describes how the decedent was trying to attack the client with a knife before the client defended himself. You start doing research on self-defense at your supervisor’s request. Excited, you go home and immediately tell your roommate, “What a day! I met a client charged with murder who told me about his self-defense claim. He said the decedent had a knife on him!”
What just happened here is significant. Our State Bar Act mandates that a lawyer shall “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” (Bus. & Prof. Code § 6068(e)(1); see also Rule 1.6 of the Rules of Professional Conduct.) Under California Evidence Code section 952:
“‘…[C]onfidential communication between client and lawyer means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation …”
Any disclosure of client information to an agent or assistant who helps advance the litigant’s interests does not waive the attorney-client privilege. (Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 845-847; see Evid. Code § 912(d).)
Importantly, Rule of Professional Conduct 5.3 mandates that lawyers who supervise nonlawyers must undertake measures to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. The lawyer is ethically responsible for the actions of the nonlawyer when there is (1) direct supervisory authority over the nonlawyer and (2) the lawyer knew of the prohibited conduct of the nonlawyer at a time when its consequences could have been avoided or mitigated but failed to take reasonable remedial action. (Rule of Prof. Conduct 5.3(c).) The Comment of this rule clarifies that any “law student interns” must be given “appropriate instruction and supervision concerning all ethical aspects of their employment.”
In the above scenario, you were an intern doing research as part of the defense team. As such, you were bound by the ethical duty of confidentiality in the same manner as your supervisor. Your supervisor must provide you with adequate training to prevent your disclosure of confidential client communications.
Prosecution
Now, imagine securing an internship with a prosecutorial agency. You truly want to see if prosecutors are any different than what you’ve seen on Law and Order. Your prosecutor supervisor allows you to attend an interview with a material eyewitness in the same downtown murder case described above. The supervisor leaves you alone with the witness as she steps outside to take a call. The witness suddenly blurts out, “oh and by the way, the decedent was aggressively swinging a knife outside the bar the whole night.”
Nervous, you decide to withhold this information from your supervisor because you fear this statement might harm the case, as well as your chances at securing a future letter of recommendation. The supervisor’s case goes to trial and you assist as part of the prosecution team. During the trial, contrary to his statement to you, the material witness denied seeing the decedent possess a knife the night of the incident. You stay silent, and the accused is convicted of murder. What just happened here is profoundly troubling.
The prosecution is obligated to provide the defense with exculpatory evidence that is material to either guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87.) The suppression of material exculpatory evidence violates due process. (Id. at p. 87.) Evidence is material only if there is a reasonable probability that had it been disclosed to the defense, the result would have been different or that nondisclosure undermined the confidence in the outcome of the trial. (In re Sassounian (1995) 9 Cal.4th 535, 544.) The prosecution must disclose information in possession of the prosecution team, including information possessed by others acting on the government’s behalf that was gathered in connection with the investigation. (United States v. Price (9th Cir. 2009) 566 F.3d 900, 908; see Rule of Prof. Conduct 3.8 and Comment [6] “Prosecutors have a duty to supervise the work of … nonlawyer employees or agents.”)
In this scenario, you were part of the prosecution team that possessed and suppressed material exculpatory evidence. Simply put, the defense was entitled to that knife-related bombshell witness statement that you withheld. Because you were part of the prosecution team, the law holds that your supervisor reasonably should have known about the statement.
Despite her ignorance, your supervisor is on the hook ethically for the nondisclosure. The conviction will almost certainly be overturned and your supervisor will have to report her misconduct to the State Bar. (Bus. & Prof. Code, § 6068(o)(7).) Sanctions against your supervisor could include public reproval, a moral turpitude finding, or far worse. (See In re Michael John Freeman (Feb. 25, 2009, State Bar Court, 06-O-15162; In re Benjamin Field (Feb. 12, 2010, State Bar Ct. Review Dept., 05-O-00815).)
This sounds scary, but fear not. An understanding of these fundamental ethical rules and requirements will help as you pursue an interest in criminal law. No matter which side you practice, a career in criminal justice is a call to public service and an important function of our great democracy. Despite uncertainties you may have about your future, I advise you to fearlessly go forth and take that first step.